Medina v. City of New York

Appellate Division of the Supreme Court of New York

Medina v. City of New York

63 A.D.3d 632, 882 N.Y.S.2d 95

Appellate Division of the Supreme Court of the State of New York·Decided June 30, 2009·Published

Opinion

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 17, 2008, which dismissed plaintiff’s complaint as barred by the statute of limitations, unanimously affirmed, without costs.

The commencement of this action was untimely (General Municipal Law § 50-i). Plaintiffs objection that defendant’s answer should be considered a nullity was effectively waived when he retained that responsive pleading for two months before moving to dismiss (see e.g. Rosenshein v Ernstoff, 176 AD2d 686 [1991]). He also failed to offer any evidence that defendant had induced him to delay bringing the action by misleading him into believing settlement negotiations were imminent. There are no grounds for estopping defendant from asserting the statute of limitations (see e.g. Dowdell v Greene County, 14 AD3d 750 [2005]; Dailey v Mazel Stores, 309 AD2d 661, 663-664 [2003]). Concur—Gonzalez, EJ., Friedman, Moskowitz, Renwick and Freedman, JJ.

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Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 17, 2008, which dismissed plaintiff’s complaint as barred by the statute of limitations, unanimously affirmed, without costs.

The commencement of this action was untimely (General Municipal Law § 50-i). Plaintiffs objection that defendant’s answer should be considered a nullity was effectively waived when he retained that responsive pleading for two months before moving to dismiss (see e.g. Rosenshein v Ernstoff, 176 AD2d 686 [1991]). He also failed to offer any evidence that defendant had induced him to delay bringing the action by misleading him into believing settlement negotiations were imminent. There are no grounds for estopping defendant from asserting the statute of limitations (see e.g. Dowdell v Greene County, 14 AD3d 750 [2005]; Dailey v Mazel Stores, 309 AD2d 661, 663-664 [2003]). Concur—Gonzalez, EJ., Friedman, Moskowitz, Renwick and Freedman, JJ.

Medina v. City of New York, 63 A.D.3d 632, 882 N.Y.S.2d 95 (N.Y. Ct. App. 2009).

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Opinion

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